Decision Date: 08/22/95 Archive Date:
09/22/95
DOCKET NO. 92-17 380 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a restoration of a 40 percent evaluation for
lumbosacral strain with lumbar dextroscoliosis, lateral
wedge deformity at L2, with arthritis and limitation of
motion, rated as 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. G. Mazzucchelli, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to June
1971. This appeal arises from February 1991 and subsequent
rating decisions of the Department of Veterans Affairs (VA),
Atlanta, Georgia, regional office (RO). The February 1991
rating decision reduced the evaluation of the veteran's
service-connected low back disorder from 40 percent to 20
percent disabling. A May 1992 rating decision continued the
20 percent evaluation.
In December 1992, the Board of Veterans' Appeals (Board)
remanded the case for additional development and for the RO
to adjudicate the issues of service connection for a
neurological disorder and a total rating based on individual
unemployability. Subsequently, a March 1995 rating decision
continued the 20 percent evaluation for the veteran's low
back disorder, denied service connection for a neurological
disorder, and denied a total rating based on individual
unemployability. A supplemental statement of the case was
issued in March 1995 on the issue of the increased
evaluation. As no notice of disagreement has been received
and no supplemental statement of the case issued on the
service connection and unemployability issues, they are not
currently before the Board and will not be addressed in this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to a higher
evaluation for his service-connected low back disorder.
Specifically, he contends that he has pain, loss of
mobility, weakness, and neuropathy as the result of his
service-connected disability. His representative requests
that all reasonable doubt be resolved in the veteran's
favor.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claim for restoration of a 40
percent evaluation for lumbosacral strain with lumbar
dextroscoliosis, lateral wedge deformity at L2, with
arthritis and limitation of motion.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's claim.
2. The veteran's service-connected low back disorder is
manifested by pain, moderate limitation of lumbar spine
motion and mild degenerative changes, but not by neurologic
deficits, muscle spasm, listing of the whole spine to the
opposite side, or positive Goldthwait's sign.
3. The regular schedular standards are adequate to rate the
disability and the case does not present an exceptional or
unusual disability picture which renders the application of
the regular schedular standards impractical.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation above 20
percent for lumbosacral strain with lumbar dextroscoliosis,
lateral wedge deformity at L2, with arthritis and limitation
of motion, have not been met. 38 U.S.C.A. §§ 1155, 5107(b)
(West 1991); 38 C.F.R. Part 4, § 4.7, Codes 5292, 5293, 5295
(1994).
2. Any failure by the RO to refer the case to the Director
of the Compensation and Pension Service for extraschedular
consideration was harmless error. 38 C.F.R. § 3.321(b)(1)
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds
that the veteran has presented a claim which is plausible.
All relevant facts have been properly developed and no
further assistance to the veteran is required to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The service medical records show that the veteran complained
of low back pain at various times during 1970 and 1971.
Lumbosacral strain was noted. No back abnormalities were
noted on the service separation examination in April 1971.
Service connection for lumbosacral strain was granted in
July 1971. A noncompensable evaluation was assigned from
June 1971 under code 5295. In July 1974, the RO increased
the evaluation to 20 percent from January 1974 for
lumbosacral strain with lumbar dextroscoliosis and lateral
wedge deformity at L2. In May 1988, the RO increased the
evaluation to 40 percent from March 1988 under the same code
for lumbosacral strain with lumbar dextroscoliosis and
lateral wedge deformity L2 with arthritis and moderate
limitation of motion. Subsequent to a VA examination in
December 1990, the RO reduced the evaluation to 20 percent
in February 1991. The 20 percent evaluation has been
continued in subsequent rating actions. The veteran
contends that he is entitled to a restoration of the 40
percent evaluation.
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4 (1994). Separate diagnostic codes identify
the various disabilities. Musculoskeletal disorders are
rated with consideration of the resulting functional
impairment. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.42 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1994). The veteran's lower
back disability is currently evaluated under 38 C.F.R. Part
4, Code 5295 (1994). This code contemplates a 40 percent
evaluation for severe lumbosacral strain, with listing of
the whole spine to the opposite side, positive Goldthwait's
sign, marked limitation of forward bending in the standing
position, loss of lateral motion with osteo-arthritic
changes, or narrowing or irregularity of joint space, or
some of the above with abnormal mobility on forced motion.
The current 20 percent evaluation is appropriate where
lumbosacral strain with muscle spasm on extreme forward
bending and loss of lateral spine motion is demonstrated.
A VA neurological examination was conducted in November
1993. The veteran stated that his major problem was back
pain. He denied any bowel or bladder complaints or numbness
or weakness in his legs. X-rays were found to be within
normal limits. On examination, motor strength testing of
the lower extremities revealed the iliopsoas, quadriceps,
hamstrings, gastrocs, soleus, extensor hallucis longus
tibialis anterior inversion and eversion to foot were all
5/5 bilaterally. Sensory examination revealed completely
normal pinprick, fine touch and proprioception to the
bilateral lower extremities. Deep tendon reflexes were 2+
at the knees and ankles bilaterally, with bilateral
downgoing toes. Range of motion of the lumbar spine showed
flexion to 70 degrees, backward extension to 35 degrees,
lateral flexion to 35 degrees bilaterally, and rotation to
35 degrees bilaterally. The examiner's opinion was that the
veteran had myofascial strain syndrome with no evidence of
neurologic compromise, and no evidence of pathology within
the lumbar spine.
A VA orthopedic examination was conducted the same day. The
veteran reported recurrent pain in the low back which
occasionally radiated down the left lower extremity as far
as the bottom of the foot. He denied any bowel or bladder
symptoms and any specific sensory or motor deficit. On
examination, the veteran ambulated with a minimal left
antalgic limp. Ranges of motion of the lumbar spine were
reported as forward flexion to 40 degrees, extension to 10
degrees, lateral bending to 20 degrees bilaterally, and
lateral rotation to 25 degrees bilaterally. Lower extremity
examination showed no sensory deficit to touch and pinprick
and motor strength was full and equal bilaterally. Deep
tendon reflexes were symmetric bilaterally as well.
Straight leg raising test was negative bilaterally. There
was mild to moderate tenderness at the lumbosacral junction
and the S1 joint bilaterally. X-rays showed no evidence of
instability. The L4-5 facet joints had mild degenerative
changes. The X-rays were otherwise negative. No specific
neurologic deficit was seen. The assessment was chronic
recurrent low back strain with significant pain.
The Board notes that the veteran was able to flex to 70
degrees on the neurologic examination but to only 40 degrees
on the orthopedic examination the same day. The other
ranges of motion were also inconsistent between the two
examinations. Nevertheless, even the decreased ranges of
motion on the orthopedic examination represent only a
moderate degree of limitation of lumbar spine motion. No
neurological deficits have been noted on the recent
examinations. The Board finds that the most recent
examinations are consistent with the moderate disability
level associated with the current 20 percent rating and do
not demonstrate that the veteran's service-connected lower
back disability more nearly approximates a severe level of
impairment contemplated by a 40 evaluation under Code 5295.
Specifically, the examinations do not show listing of the
whole spine to the opposite side, positive Goldthwait's
sign, loss of lateral motion, or abnormal mobility on forced
motion. 38 C.F.R. Part 4, § 4.7, Code 5295 (1994).
The veteran is not entitled to a 40 percent evaluation under
code 5293 since there is no showing of severe intervertebral
disc syndrome with demonstrable muscle spasm, and no
neurological involvement. 38 C.F.R. Part 4, § 4.7, Code
5293 (1994). Likewise, there is no demonstration of the
severe level of limitation of lumbar spine motion which is
required for the assignment of a 40 percent evaluation under
code 5292. 38 C.F.R. Part 4, § 4.7, Code 5292 (1994).
There is no equipoise between the positive and negative
evidence, therefore no reasonable doubt issue is raised. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994).
The schedular evaluations are adequate to compensate the
veteran's back disability. This is not an exceptional case
where the schedular evaluations are shown to be inadequate.
It does not present an exceptional or unusual disability
picture with such related factors as marked interference
with employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (1994). Any failure by
the RO to refer the case to the Director of the Compensation
and Pension Service for extraschedular consideration was
harmless error. 38 C.F.R. §§ 3.321(b)(1) (1994).
ORDER
Restoration of a 40 percent evaluation for lumbosacral
strain with lumbar dextroscoliosis, lateral wedge deformity
at L2, with arthritis and limitation of motion, is denied.
JAN DONSBACH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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